(PC) Naylor v. Allenby et al, No. 1:2011cv01649 - Document 23 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS to (1) Grant In Part and Deny In Part Defendant's Request for Judicial Notice, and (2) Grant In Part and Deny In Part Defendant's Motion to Dismiss 12 , signed by Magistrate Judge Michael J. Seng on 12/8/14: Matter referred to Judge O'Neill; Fourteen Day Objection Deadline. (Hellings, J)

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1 00. 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TROY MITCHELL NAYLOR, 12 Plaintiff, 13 14 v. CLIFF ALLENBY, et al., 15 Case No. 1:11-cv-1649-LJO-MJS (PC) FINDINGS AND RECOMMENDATIONS TO (1) GRANT IN PART AND DENY IN PART DEFENDANT’S REQUEST FOR JUDICIAL NOTICE, AND (2) GRANT IN PART AND DENY IN PART DEFENDANT’S MOTION TO DISMISS Defendants. 16 (ECF No. 12) 17 FOURTEEN DAY OBJECTION DEADLINE 18 19 20 21 22 23 24 25 26 27 28 I. PROCEDURAL HISTORY Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 5.) This matter proceeds against Defendant Duvall on Plaintiff s First Amendment retaliation claim and Fourth Amendment unlawful search claim. (ECF No. 6.) Before the Court is Defendant s motion to dismiss this action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. (ECF No. 12.) Plaintiff filed an opposition. (ECF No. 19.) Defendant did not file a reply. Defendant s motion to dismiss is deemed submitted pursuant to Local rule 230(l). 1 II. LEGAL STANDARD – MOTION TO DISMISS 2 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency 3 of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the 4 absence of sufficient facts alleged under a cognizable legal theory. Conservation Force 5 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, a 6 court s review is generally limited to the operative pleading. Daniels-Hall v. Nat l Educ. 7 Ass n, 629 F.3d 992, 998 (9th Cir. 2010). 8 To survive a motion to dismiss, a complaint must contain sufficient factual matter, 9 accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 10 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 11 (2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Serv., 572 F.3d 12 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw 13 all reasonable inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 14 998, and pro se litigants are entitled to have their pleadings liberally construed and to 15 have any doubt resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 16 Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 17 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 18 III. PLAINTIFF’S CLAIMS 19 Plaintiff filed a suit in state court challenging the search of his room and 20 confiscation of his electronic devices by hospital staff. Three days after service of his 21 suit, Defendant retaliated against Plaintiff by conducting another search. Three days 22 later, Defendant confiscated Plaintiff s computer and electronic devices. Plaintiff s 23 computer and electronic devices were seized and have not been returned. 24 IV. ARGUMENTS 25 Defendant argues that he cannot be sued in his official capacity under 28 U.S.C. 26 § 1983, and thus Plaintiff s official capacity claims should be dismissed. He also argues 27 that Plaintiff has failed to allege sufficient facts to link Defendant to any retaliatory 28 action, and that Plaintiff s claims are contradicted by judicially noticeable facts. Finally, 2 1 Defendant argues that Plaintiff does not state a First or Fourth Amendment claim for the 2 search and seizure of his computer and electronic device, because he has no 3 constitutional right to possess those devices under California regulations. Defendant 4 asks the Court to take judicial notice of (1) the docket in Plaintiff s state court action; (2) 5 an unpublished decision in Allen v. Mayberg, No. 1:10-cv-01973-BLW, 2012 WL 6 3911231 (E.D. Cal. Sept. 7, 2012), reversed in part by 577 Fed. Appx. 728 (9th Cir. 7 2014); and (3) section 4350 of title 9 of the California Code of Regulations. 8 V. ANALYSIS 9 A. 10 Request for Judicial Notice The Court may take judicial notice of documents that are part of the public record 11 to show that a judicial proceeding occurred or that a document was filed in another 12 case. Reyn s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); 13 Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). Accordingly, the Court 14 may take judicial notice of the docket in Plaintiff s pending state action. 15 The Court may take judicial notice of another court s opinion “not for the truth of 16 the facts recited therein, but for the existence of the opinion, which is not subject to 17 reasonable dispute over its authenticity.” Lee, 250 F.3d at 690 (citation omitted). 18 However, Defendant asks the Court to take judicial notice of the opinion in Allen v. 19 Mayberg, not for the existence of the opinion, but as authority for the proposition that 20 civil detainees do not have a constitutional right to possess a computer. This proposition 21 is not judicially noticeable, and the request to take judicial notice of the opinion in Allen 22 should be denied. The Court will address below whether Allen constitutes persuasive 23 authority for the proposition cited. 24 The Court may take judicial notice of title 9, section 4350 of the California Code 25 of Regulations. See Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 742 n.4 (1976). 26 Although these records are outside the pleadings, they do not convert 27 Defendant s motion to dismiss into a motion for summary judgment. Lee, 250 F.3d at 28 189, 688 (9th Cir. 2001); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 3 1 1282 (9th Cir. 1986) (“[O]n a motion to dismiss a court may properly look beyond the 2 complaint to matters of public record and doing so does not convert a Rule 12(b)(6) 3 motion to one for summary judgment[.]”). 4 B. 1. 5 6 Motion to Dismiss Official Capacity Claims Plaintiff s complaint names Defendant in his official and individual capacities. 7 (ECF No. 1 at 4.) Defendant contends that he may not be sued in his official capacity. 8 The Court s screening order did not address Plaintiff s official capacity claims. (ECF No. 9 6.) 10 “Official capacity” suits require that a policy or custom of the governmental entity 11 is the moving force behind the violation. McRorie v. Shimoda, 795 F.2d 780, 783 (9th 12 Cir. 1986). Plaintiff s complaint does not directly state that a policy or custom motivated 13 the alleged violations. (ECF No. 1.) However, he alleges three separate incidents in 14 which his premises were searched, and in two of those his property was seized. (ECF 15 No. 1 at 7.) In his opposition, Plaintiff states that “a practice of taking property has gone 16 on since operation of the hospital first started.” (ECF No. 19 at 2.) Although not directly 17 stated, the Court finds that the allegations contained in the complaint are sufficient to 18 allow an inference that a policy or custom was the moving force behind the alleged 19 violations. 20 Nonetheless, Defendant contends that “a state officer in his official capacity in 21 not a „person subject to suit under Section 1983.” (ECF No. 12 at 5.) This is true with 22 respect to claims seeking money damages. Will v. Michigan Dep t of State Police, 491 23 U.S. 58, 71 (1989); see also Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 24 (9th Cir. 2007) (citations omitted). It is not true with respect to claims seeking 25 prospective relief. Will, 491 U.S. at n.10; see also Wolfson v. Brammer, 616 F.3d 1045, 26 1065-66 (9th Cir. 2010). 27 28 4 1 Plaintiff s complaint seeks both monetary damages and injunctive relief. Plaintiff s 2 claims for money damages against Defendant in his official capacity should be 3 dismissed. His claims for injunctive relief should not. 4 2. a. 5 6 First and Fourth Amendment Claims Prior Screening Order As noted, to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain 7 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 8 face. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); Moss, 572 F.3d at 969. 9 This is the same standard the Court applies in screening a prisoner s complaint to 10 determine whether it states a cognizable claim. Indeed, it is the very standard the Court 11 applied in evaluating Plaintiff's complaint, and which lead to the Court's conclusion that 12 the complaint stated cognizable claims. That is, the Court found that Plaintiff alleged 13 claims which, when accepted as true for pleading purposes, would survive a Rule 14 12(b)(6) motion. 15 Nothing has since changed. 16 Nevertheless, Defendant argues that the very pleading which this Court found 17 stated a cognizable claim does not state a cognizable claim and should be dismissed 18 pursuant to Rule 12(b)(6). The Court would prefer not to duplicate its efforts and explain 19 again why it reached the conclusions it did on screening, but the present Motion to 20 Dismiss effectively asks it to do so. Accordingly, the Court will herein address the 21 substantive issues presented by Defendant's motion. 22 23 b. Legal Standard – Retaliation “Within the prison context, a viable claim of First Amendment retaliation entails 24 five basic elements: (1) An assertion that a state actor took some adverse action 25 against an inmate (2) because of (3) that prisoner s protected conduct, and that such 26 action (4) chilled the inmate s exercise of his First Amendment rights, and (5) the action 27 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 28 F.3d 559, 567-68 (9th Cir. 2005). 5 1 In the civil detention context, a search or seizure that is retaliatory violates the 2 Fourth Amendment. Hydrick v. Hunter, 500 F.3d 978, 993 (9th Cir. 2007). c. 3 4 Analysis Defendant first contends that the complaint fails to state a claim for retaliation 5 because Plaintiff did not adequately allege that Defendant undertook the search 6 “because of” Plaintiff s protected conduct. More specifically, Plaintiff did not allege that 7 Defendant was served with or knew of Plaintiff s state court action. Additionally, 8 Defendant contends that the docket in Plaintiff s state court action reflects that 9 Defendant Duvall is not a defendant in the state court action, and was not served with 10 Plaintiff s pleadings. 11 The temporal proximity (three days) between the filing and serving of Plaintiff s 12 legal documents and the search and seizure is sufficient circumstantial evidence of 13 causation to survive a motion to dismiss, regardless of whether Defendant was named 14 or served in the state court action. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) 15 (finding that a prisoner established a triable issue of fact regarding prison officials 16 retaliatory motives by raising issues of suspect timing, evidence, and statements); Hines 17 v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 18 (9th Cir. 1995) (“timing can properly be considered as circumstantial evidence of 19 retaliatory intent”). Defendant s motion to dismiss on this basis should be denied. 20 Defendant next contends that Plaintiff fails to state a claim because he has no 21 constitutional right to possess a computer pursuant to section 4350 of title 9 of the 22 California Code of Regulations. The regulation prohibits the possession of “electronic 23 devices with the capability to connect to a wired . . . and/or wireless . . . communications 24 network to send and/or receive information.” Defendant also relies on Allen for this 25 proposition. 26 The District Court s decision in Allen, cited by Defendant, concluded that civil 27 detainees have no Fourteenth Amendment interest in the possession of certain 28 electronic devices. However, the United States Court of Appeals for the Ninth Circuit 6 1 reversed Allen on that basis, concluding that a detainee who alleged that his electronic 2 devices were confiscated without justification had sufficiently alleged a Fourteenth 3 Amendment claim. Thus, Defendant s argument based on Allen is unpersuasive. 4 The issue in this case is not whether Plaintiff had a constitutional right to possess 5 his electronic devices, but rather whether he had the right to be free from unreasonable 6 searches, and to engage in constitutionally protected behavior -- bringing a lawsuit – 7 without suffering retaliation. He has sufficiently alleged these claims. Defendant s 8 motion to dismiss on this basis should be denied. 9 VI. 10 CONCLUSION AND RECOMMENDATION Based on the foregoing, the Court HEREBY RECOMMENDS that Defendant s 11 request for judicial notice (ECF No. 12) be GRANTED IN PART AND DENIED IN PART. 12 Specifically, the Court recommends that the Court take judicial notice of the docket in 13 Plaintiff s state court proceeding and section 4350 of title 9 of the California Code of 14 Regulations. Defendants request should otherwise be denied. 15 The Court FURTHER RECOMMENDS that Defendant s motion to dismiss (ECF 16 No. 12) be GRANTED IN PART AND DENIED IN PART. Specifically, the Court 17 recommends that Plaintiff s claim for money damages against Defendant in his official 18 capacity be dismissed. Defendants motion should otherwise be denied. 19 These Findings and Recommendations are submitted to the United States 20 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). 21 Within fourteen (14) days after being served with these Findings and 22 Recommendations, any party may file written objections with the Court and serve a 23 copy on all parties. Such a document should be captioned “Objections to Magistrate 24 Judge s Findings and Recommendations.” Any reply to the objections shall be served 25 and filed within ten days after service of the objections. The parties are advised that 26 failure to file objections within the specified time may result in the waiver of rights on 27 28 7 1 appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 2 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: December 8, 2014 /s/ 6 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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